Personal Injury

There is never a good time to get injured in an accident.  However, accidents are a fact of life.  The National Highway Traffic Safety Administration determined that in the year 2000 there were a total of 35,766 fatal car accidents on the roadways across the United States with another 1,593,390 crashes resulting in injuries and 3,621,681 caused property damage. That means a total of at least 5,250,837 collisions happened over the course of a single year. 

To be successful in a personal injury claim, there are three things that you need to have on your side: liability, damages, and coverage.
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Last week, cyclists came to Westfield, Massachusetts to take part in a “Ride of Silence” to honor the memories of those who have been injured or killed on public roadways while cycling.  Earlier this year, in an effort to address the increasing number of injured or killed cyclists (not to mention walkers and runners), past Governor Charlie Baker entered the safe passing law.   This law recently went into effect and is applicable to all motorists driving on public roadways in Massachusetts and was made in an attempt to reduce road deaths, which spiked to an 11-year high in 2021 with an estimated 400 road deaths (a number that does not include injuries). 

The law requires drivers to provide at least four feet of space between their vehicle and "vulnerable road users.”  Such vulnerable road users include people walking or running, bicyclists, roadside workers, horse riders and horse-drawn carriages, farm equipment, people using wheelchairs, people using motorized scooters, skateboarders, roller-skaters, and any other similar pedestrian situation.
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Last week, the Massachusetts Appeals Court heard a dispute as to whether or not a Middlesex Superior Court judge acted within his discretion by admitting photographs of damaged vehicles into evidence at trial and allowing defense counsel to argue a correlation between the property damage from the accident with the extent of the plaintiff’s alleged injuries.  In the matter of Kristina Laccetti v. Steven G. Ellis, the Appeals Court found that the trial judge acted within his discretion in admitting photographs of the damaged vehicles on the basis that the photographs were relevant to the extent of the plaintiff’s physical injuries sustained in the collision.

While the plaintiff’s counsel tried to argue that an expert witness would be needed to make such a connection between the physical damage to the car and the personal injuries of the person inside the vehicle, the Court found differently.
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Not all personal injury claims are created equal and sometimes an accident really just is an accident.  This lesson was just learned by a Plaintiff in Middlesex Superior Court after a four-day trial resulted in a defense verdict and no recovery for the Plaintiff.  The claim involved an injury to a seven year old girl who suffered a fall at a school playground.

In the matter of Ozkan v. City of Malden, seven year old Nihal Ozkan was a student at the Linden Steam Academy in Malden, Massachusetts.
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While we typically think of car accidents and slip and falls as the stereotypical personal injury cases, there are actually quite a few other types of situations that lead to personal injury cases.  One such type of personal injury case involves physical assault caused by an intoxicated person.  Many times, liability will extend beyond the actual individual responsible for another’s injuries to the person or establishment who served the liquor.  Massachusetts and many other states have enacted a “Dram Shop law” in an effort to deal with these types of cases.

Pursuant to Massachusetts General Laws chapter 138 § 69, someone suffering from physical injury, property damage, or other damage may sue the licensed liquor provider who served an intoxicated person.
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For a long time in the legal world, there has been a bias that juries in certain counties in Massachusetts will not award verdicts of higher amounts.  Several of these counties are located in the South Coast and Cape Cod area.  Insurance companies and defense counsel have used this bias (which, to be fair, is sometimes a reality) in making unreasonable settlement offers to personal injury plaintiffs.  A jury in Plymouth Superior Court recently made a big statement that these counties may be willing to award the big verdict by awarding a trip and fall victim in Plymouth County a verdict of $1,437,314.00.
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Massachusetts allows personal injury cases to move forward if there is an “obvious causal relationship” between the injury claimed and the accident that forms the basis of the claim.  However, a recent case was dismissed by a U.S. District Court judge who ruled that a premises liability plaintiff could not rely on Massachusetts’ “obvious causal relationship” exception to avoid having to introduce expert medical testimony rebutting a defense expert’s opinion that her torn rotator cuff was due to a fall that occurred eight months before she slipped and fell at the defendant’s store.

In this particular case, the Plaintiff slipped and fell in the restroom of a Costco store.
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Massachusetts had more deaths on its roads in 2021 than in any year since 2009.  According to a new report from the Massachusetts Department of Transportation, four hundred and eight people died on Massachusetts road last year, including drivers, passengers, bicyclists, and pedestrians.  This death total is nineteen percent higher than the 2020 total of 343 fatalities.

There are many explanations for this increase in fatalities.  Beginning in April of 2020, there was an increase of reckless driving and speeding which was explained by the Covid-19 pandemic emptying roadways which used to home congested streets.
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On October 6, 2021, Charlie Braun was killed when he was struck by a car while riding his bicycle in Northampton, Massachusetts.  The driver that hit and killed Charlie Braun is facing charges of negligent motor vehicle homicide, failing to stop for a stop sign, and FaceTiming while driving.  As a result, there has been a new push to further reduce distracted driving in Massachusetts and it involves strengthening the state's current hands-free driving law and closing an existing loophole regarding broadcasting video content while driving.

The state's hands-free law, which went into effect in February 2020, already prohibits drivers from holding their phones while operating their vehicles, but, in a bit of a loophole, it does not prohibit operates from filming while driving.  More specifically, while the Massachusetts law bans drivers from viewing video displayed on a mobile electronic device, it does not ban drivers from recording or broadcasting video of themselves while driving, using apps like FaceTime or Zoom.
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Recently a colleague asked me what the law required when an emergency vehicle is traveling on the same road but in the opposite direction.  He was not sure if he had an obligation to pull over to the right if the emergency vehicle had an unobstructed path forward in its lane of travel.  The law does require drivers in the opposite lane of travel to pull over as far to the right as is safely possible even if the emergency vehicle has a clear path forward in the opposite travel lane.  Failure to do so can lead to a fine, jail time, loss of license, and have a significant repercussions on a possible automobile accident claim.

The important law to be aware of is Massachusetts General Law chapter 89 § 7 and §7A.

As hard it is to believe we are over seven months into the COVID-19 pandemic and the legal community is beginning to see some trends with regards to COVID-19 related litigation.  There are two trends in particular that should be noted: the increase in serious automobile accidents and the increase in lawsuits against individual owners and managers of corporations, as opposed to just the corporations themselves.

It has been pretty well established that traffic has decreased significantly since the first wave of shutdowns in March 2020, so it may surprise some that there has been an increase in serious automobile accidents since that time.  In fact, the number of motor vehicle fatalities per miles driven increased by fourteen percent in comparing March 2019 to March 2020 according to a National Safety Council report.  Since March 2020 there have been many serious accidents on the roadways despite a general decrease in the number of drivers.
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